In the application of Brailey Holdings Pty Limited ACN 001 190 441 [2018] NSWSC 1493

Supreme Court New South Wales

Medium Neutral Citation: In the application of Brailey Holdings Pty Limited ACN 001 190 441 [2018] NSWSC 1493 Hearing dates: 4 October 2018 Date of orders: 04 October 2018 Decision date: 04 October 2018 Jurisdiction: Equity Before: Kunc J Decision: Judicial advice given that plaintiff entitled to administer trusts in accordance with reconstructed trust deeds Catchwords: EQUITY — Trusts and trustees — Judicial advice — Lost trust deeds Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Barp Nominees Pty Ltd [2016] NSWSC 990 Category: Principal judgment Parties: Brailey Holdings Pty Limited (Plaintiff) Representation: Counsel: D Barlin (Plaintiff)

Solicitors: Kells (Plaintiff) File Number(s): 2018/188359 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. This is an application pursuant to s 63 of the Trustee Act 1925 (NSW) that the plaintiff trustee, Brailey Holdings Pty Limited (the "Trustee"), is justified in managing and administering two family trusts on particular terms in circumstances where, despite extensive searches, the original trust deeds (or copies) have not been able to be found. 2. The basis of the application is that, at the time the two lost trust deeds were settled, at least one other trust (the terms of which are in evidence) was settled at the same time. By reason of that and other circumstantial evidence which I shall set out below, the Court is satisfied that the Trustee has brought clear and convincing proof not only of the existence, but also of the contents, of the missing trust deeds — namely that they are relevantly in the same terms as the trust deed which is in evidence. 3. In considering this application, the Court has been considerably assisted by the thorough opinion of Mr D Barlin of Counsel, which formed part of the evidence, and by his oral submissions on behalf of the Trustee.